Item Q12 Q12
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE Mayor James K.Scholl,District 3
The Florida Keys Mayor Pro Tern Michelle Lincoln,District 2
Craig Cates,District 1
David Rice,District 4
Holly Merrill Raschein,District 5
Board of County Commissioners Meeting
January 15, 2025
Agenda Item Number: Q12
2023-3550
BULK ITEM: No DEPARTMENT: County Attorney
TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger
n/a
AGENDA ITEM WORDING: Approval of updated bond Disclosure Counsel Retainer Agreement
with the law firm of Bryant Miller Oliva P.A. to replace the prior agreement approved by the Board on
December 18, 2002.
ITEM BACKGROUND:
Attorney Duane Draper of the law firm of Bryant Miller Olive P.A. has served as the County's bond
disclosure counsel since 2002. With the upcoming bond issuance, it is necessary to update the
Disclosure Counsel Retainer Agreement. Disclosure counsel is a separate law firm from the County's
bond counsel,Nabors Giblin Nickerson P.A. Disclosure counsel assists with federal securities law and
disclosure documents related to public bond issuances.
The only material change to the agreement from the 2002 version is that the minimum fee for a public
offering has been raised from$15,000 to $25,000. This rarely comes into play as the County has never done a
public offering small enough to trigger the minimum. The normal fee is a contingent fee equal to 80%the fee
payable to the County's Bond Counsel and is paid at the time the bonds or notes are issued and delivered. However,
the firm is to be reimbursed for its expenses irrespective of the completion of the bond issue.
This updated agreement only updates and replaces the 2002 disclosure counsel agreement. It does not affect the
other agreement that the County has with the law firm dated July 29, 2020 to assist the County with public private
partnership projects.
PREVIOUS RELEVANT BOCC ACTION:
On 12/18/2002, the Board approved the prior disclosure counsel agreement with the firm.
INSURANCE REQUIRED:
Yes
CONTRACT/AGREEMENT CHANGES:
Updates agreement and changes the minimum fee from $15,000 to $25,000 per transaction.
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STAFF RECOMMENDATION:
DOCUMENTATION:
Monroe County BMO Disclosure Counsel January 2025 Agreement.pdf
BMO Monroe County (Disclosure Counsel) December 2002 - 4448.pdf
FINANCIAL IMPACT:
To be paid out of bond proceeds.
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Disclosure Counsel Retainer Agreement
DISCLOSURE COUNSEL RETAINER AGREEMENT
By and Between
MONROE COUNTY, FLORIDA
and
BRYANT MILLER OLIVE P.A.
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Disclosure Counsel Retainer Agreement
DISCLOSURE COUNSEL RETAINER AGREEMENT
TABLE OF CONTENTS
Page
1. RETAINER AGREEMENT................................................................................................................1
2. DISCLOSURE COUNSEL SERVICES.........................................................................................1
3. SPECIAL COUNSEL SERVICES......................................................................................................3
4. DISCLOSURE................................................................................................................................3
5. CONTRACT ADMINISTRATION..............................................................................................4
6. GENERAL......................................................................................................................................4
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Disclosure Counsel Retainer Agreement
DISCLOSURE COUNSEL RETAINER AGREEMENT
THIS DISCLOSURE COUNSEL RETAINER AGREEMENT (the "Retainer
Agreement") is entered into by and between Monroe County, Florida (the "County") and the
law firm of Bryant Miller Olive P.A. ('Bryant Miller Olive" or the "Firm") as of the day of
, 2025.
WHEREAS, the Firm and its members have a local and statewide presence, have
provided, and continue to provide disclosure counsel services to local governments within and
outside of Florida; and
WHEREAS, the County and the Firm desire to document and memorialize that the Firm
shall be available to serve on an as needed basis as disclosure counsel to the County; and
WHEREAS,the County and Bryant Miller Olive desire to respectively receive and provide
legal services specifically described herein pursuant to this Retainer Agreement.
NOW,THEREFORE,it is agreed as follows:
1. RETAINER AGREEMENT. This Retainer Agreement shall memorialize and
supplant any prior agreements between the parties concerning the provision of disclosure
counsel and special counsel legal services.
2. DISCLOSURE COUNSEL SERVICES.
(A) The Firm, as disclosure counsel will, when requested by the County, perform the
following services with respect to the issuance of publicly offered bonds:
(1) prepare all disclosure documents at the request of the County; however,
the Firm shall assume no responsibility for the disclosure documents insofar as such documents
describe the financial circumstances of the offering or any other statistics, projections or data;
(2) perform due diligence regarding County financings;
(3) assist the County in the compliance with federal and state securities laws;
(4) subject to completion of proceedings to the Firms satisfaction, render
customary legal opinion to the County pertaining to disclosure as well as a reliance letter to the
County's underwriters,if requested;
(5) prepare the Continuing Disclosure Certificate to assist the underwriters
in complying with the continuing disclosure requirements of Rule 15c2-12 or its successor in
function; and
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Disclosure Counsel Retainer Agreement
(6) prepare the bond purchase agreement on behalf of the County, if
requested.
(B) The Firms opinions will be based on facts and law existing as of its date. In
rendering an opinion, the Firm will rely on the certified proceedings and other certifications of
public officials, officers of the County and other persons furnished to the Firm without
undertaking to verify the same by independent investigation, and the Firm will assume
continuing compliance by the County with applicable laws relating to the bonds. The Firm will
rely on the County to provide complete and timely information on all developments pertaining
to any aspect of the bonds, the use of proceeds of the bonds, and the security for the bonds.
(C) The Firm, as disclosure counsel will not perform the following services with
respect to the issuance of bonds and matters relating thereto:
(1) traditional bond counsel services;
(2) preparation of blue sky or investment surveys with respect to the Bonds;
(3) investigation or expression of any view as to the creditworthiness of the
County, any credit enhancement provider, or the bonds, or, providing services related to
derivative financial products (e.g. 'swaps' and related documents or opinions);
(4) representing the County in Securities and Exchange Commission
investigations, inquiries,or related matters; and
(5) addressing any other matter not specifically set forth above that is not
required to render the Firm's opinion.
(D) For the services described above, the County agrees that the Firm shall be
compensated for disclosure counsel services, at the time the bonds or notes are issued and
delivered, at a contingent fee equal to 80% the fee payable to the County's Bond Counsel, or
$25,000, whichever is greater. The payment of our fee is completely contingent in all cases on
the sale and delivery of the bonds; however, we will be reimbursed for our expenses
irrespective of the completion of the bond issue.
(E) The Firms fee may vary: (1) if material changes in the structure or schedule of
the financing occur; or (2) if unusual or unforeseen circumstances arise which require a
significant increase in the Firms time or responsibility; or (3) upon review of fees charged by
counsel for comparable undertakings. If, at any time, the Firm believes that circumstances
require an adjustment of the fee described above, the Firm will advise the County and seek an
adjustment based upon the relevant circumstances. Such adjustment will only be made by the
County, in its sole discretion.
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Disclosure Counsel Retainer Agreement
(F) When requested, the Firm will also prepare or review secondary market
submissions at the hourly rates described in Section 4(B)hereof.
3. SPECIAL COUNSEL SERVICES.
(A) When requested by the County Attorney, Bryant Miller Olive shall also be
available to provide legal services as special counsel to the County for matters unrelated to the
specific issuance of new debt as a complement and supplement to the services generally provided
by the County Attorney. Special counsel legal services and assistance outside the scope of
County Attorney's services, only when necessary and as specifically authorized, may be
provided on an hourly or negotiated fee basis by separate work orders as provided herein, for
the provision of other legal services of a specialized nature which the Firm may possess and are
desired and specifically requested by the County.
(B) The provision of special counsel legal services shall be conditioned upon a scope
of services and fee structure as directed or authorized by the County Attorney and shall be set
forth in a written work order in a form approved by the County Attorney.
(C) Bryant Miller Olive will be compensated for special counsel legal services at the
Firms then government rates or at negotiated fees based upon the skills,experience, or expertise
of the attorneys involved and agreed to by the Firm through specific written work orders or
as otherwise approved by the County Attorney.
4. DISCLOSURE. The rules regulating The Florida Bar provide that a conflict
of interest exists whenever a lawyer represents one client in a matter adverse to another client.
The lawyer may proceed with the representation of one client if, after disclosure of the conflict,
both clients consent to the representation. We have disclosed to the County that we have,
currently do and may in the future, serve as bond, disclosure or other counsel to other local
governments or otherwise act as counsel to underwriters, investment banks and commercial
banks on public finance matters. From time to time, we may represent the firms which may
underwrite the County's bonds, notes, or other obligations (and other financial institutions
hired by the County) in connection with financings for other governmental entities on unrelated
matters. In either case, such representations are standard and customary within the municipal
bond industry. In our opinion, we can effectively represent the County and the discharge of the
Firm's professional responsibilities notwithstanding our representation of other parties in other
unrelated matters, either because such representations will be sufficiently different or because
the potential for such conflict is remote and minor and outweighed by consideration that it is
unlikely that advice given to the other client will be relevant in any respect to the subject matter,
and the County expressly consents to such other representations consistent with the
circumstances herein described. The County consents to such representation of the other client
in unrelated matters consistent with the circumstances described herein. However, the County
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Disclosure Counsel Retainer Agreement
reserves the right to identify a representation that it finds objectionable in the future, in which
case the Firm agrees to take appropriate steps to resolve the issue.
5. CONTRACT ADMINISTRATION.
(A) For ease and convenience of administration, the County hereby also designates
its County Attorney to provide policy direction and instructions to the Firm in the
administration of its duties hereunder, approving, and authorizing work orders, when required,
and all other matters necessary to administer this Retainer Agreement on behalf of the County.
(B) The Firm shall be entitled to reasonably rely upon direction received from the
County Attorney.
6. GENERAL.
(A) This Retainer Agreement shall be governed by and construed in accordance with
the laws of the State of Florida. In the event of any dispute arising out of or relating to this
Retainer Agreement, the parties agree to waive trial by jury and agree that venue shall lie in
Monroe County, Florida. In the case of litigation of such disputes, the prevailing party shall be
entitled to recover attorney fees and costs from the other party. This Retainer Agreement may
be amended only by a written agreement entered by the parties.
(B) This Retainer Agreement may be terminated with or without cause by the County
or by Bryant Miller Olive at any time upon ninety (90) days written notice. In the event of
termination, the Firm shall assume responsibility for completion of and shall be compensated for
all representation requested prior to the notice of termination. Provided however, the County
may terminate this Retainer Agreement for breach by the Firm with such notice as may be
reasonable under the circumstances. In the event of termination, with or without cause, the Firm
shall be compensated in accordance herewith for approved time and expenses expended prior
to the date of termination.
(C) Bryant Miller Olive is not a "municipal advisor" as contemplated in Exchange Act
Rule 15(B)(e)(4)(C) and will only provide services hereunder that are of a traditional legal
nature.
(D) This Agreement will be effective for a term of five (5) years from its date of
execution and will be automatically extended without any action required for successive one-
year renewals following the initial five (5) year period unless terminated by either the County
or the Firm pursuant to subsection (B) of this Section.
(E) This Retainer Agreement may be executed in multiple counterparts.
(F) This Retainer Agreement shall be effective on the date first written above.
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Disclosure Counsel Retainer Agreement
Page Intentionally Left Blank
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Disclosure Counsel Retainer Agreement
IN WITNESS WHEREOF,Monroe County, Florida and Bryant Miller Olive have caused
this Disclosure Counsel Retainer Agreement to be executed as of the dates below and effective as
of the day first above written.
MONROE COUNTY,FLORIDA
By:
Name: James K. Scholl
Title: Mayor, Board of County Commissioners
Date: 2025
Attest:
By:
Name: Kevin Madok
Title: Clerk of the Circuit Court and Controller
and ex-officio Clerk to the Board of County
Commissioners of Monroe County, Florida
BRYANT ILLER OLIVE A.
By: �
areholder and Authorized ignatory
Date: 2025
125009/008/02772691.DOCv21
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M
BOARD OF COUNTY COMMISSION€�S
Mayor Dixie M.Spehar,District 1
Mayor Pro Tem Murray E.Nelson,District 5
O U N TYSVLORIDA33040
ONROE George Neugent,District 2
KEYWEST Charles"Sonny"McCoy,District 3
(305)zs4-4sa1 David P.Rice,District 4
l
Monroe County °
Board of County Commissioners
Office of the County Administrator
The Historic Gato Cigar Factory
1100 Simonton Street, Suite 205
Key West, FL 33040
(305)292-4441—Phone
(305)292-4544-Fax
January 13, 2003
Mr. Duane Draper
Bryant,Miller and Olive,P.A.
Bank of America Plaza
101 East Kennedy Boulevard, Suite 2100
Tampa, Florida 33602
Dear Mr. Draper:
At the meeting of the Monroe County Board of County Commissioners on December 18,
2002, the Board approved an Agreement for Disclosure Counsel Services between Monroe County
and the firm of Bryant, Miller and Olive, P.A.
Enclosed is a duplicate original of the above mentioned for your handling. Should you have
any questions, please do not hesitate to contact this office.
Very truly yours,
Debbie Frederick
Aide to the County Administrator
Enc.
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AGREEMENT FOR DISCLOSURE COUNSEL SERVICES
BRYANT, MILLER AND OLIVE, P.A., a professional association organized under
the laws of the State of Florida, the address of which is 101 E. Kennedy Blvd., Suite 2100,
Tampa, Florida 33602 (the "Firm"), agrees to serve as Disclosure Counsel to MONROE
COUNTY, FLORIDA, a political subdivision of the State of Florida (the "County"), and as
Disclosure Counsel will, when requested by the County, perform the following services with
respect to the issuance of bonds (including conduit bonds issued by the County on behalf of
corporations) and matters relating thereto:
1. Prepare all disclosure documents at the request of the County, but only
insofar as such documents describe the bonds and summarize the underlying documents.
However, we assume no responsibility for the disclosure documents insofar as such
documents describe the financial circumstances of the offering or any other statistics,
projections or data.
2. Perform due diligence with regard to County financings to provide full
disclosure with respect to County financings.
3. Assist the County in the compliance with federal and state securities laws.
4. Render appropriate opinions to the County pertaining to disclosure as well as
a reliance letter to the underwriters.
5. Prepare the Continuing Disclosure Certificate in order to assist the
underwriters in complying with the continuing disclosure requirements of Rule 15c2-12.
i
6. Review of competitive sale documents prepared by Bond Counsel.
i
The County agrees that the Firm shall be compensated for the above services, at the
time the bonds are issued, at a fee equal to 80% the fee payable to the County's Bond
Counsel, or $15,000, whichever is greater. The payment of our fee is completely contingent
in all cases on the sale and delivery of the bonds; however, we will be reimbursed for our
expenses irrespective of the completion of the bond issue. Hourly rate services unrelated to
the specific issuance of a new debt shall be performed at the rate of $200.00 per hour upon
the request of the County.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Florida. This Agreement may be amended only by a writing duly entered into
by the County and the Firm.
The County may cancel or terminate this Agreement upon sixty days advance
written notice to the Firm. In the event of cancellation, the Firm shall, unless otherwise
requested by the County, immediately cease work hereunder and shall be reimbursed for
eligible and documented reimbursable expenses incurred prior to the date of cancellation.
It is understood and agreed by the parties that the County will reimburse the Firm
for reasonable out-of-pocket expenses, whether or not bonds or debt is ultimately issued.
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It is understood and agreed between the County and the Firm that Duane D.
Draper, Grace E. Dunlap, Randall W. Hanna, J. Carter Andersen and George A. Smith, Jr.
will be the attorneys of the Firm to provide the services enumerated above.
DATED this day of , 2002.
MONROE COUNTY, FLORIDA
By:
Chairman
f,
+.j TDAINTVY 'LHr A'GE" Clerk
Cler
Approved as to Form and
Legal Sufficiency:
ounty hey
BRYANT, MILLER AND OLIVE, P.A.
By. )V 4'01 I �K
Authorized Signatory
J:\FIRM\PROPS\Monroe\agrdisc.doc
December 9,2002
2
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